legal perspective on section 222(1)(a) of the local Government Act 1972 In this feature l prosecution decisions l courts role l inhabitants interests how a recent Court of Appeal case has effectively changed the scope of power available to local authorities to bring prosecutions under the Local Government Act 1972 Controversial move? A recent Court of Appeal decision into the legality of a fraud prosecution by Thurrock Council has opened a debate into the meaning of section 222(1)(a) of the Local Government Act 1972, which is supposed to empower a local authority to prosecute where it considers it expedient for the promotion or protection of the interests of the inhabitants of their area. The case, R v AB & ors [2017] EWCA Crim 534, was against employees of a London-based solicitors practice specialising in immigration. The defendants had allegedly conspired to defraud the Legal Aid Agency (LAA) of around 4m by submitting claims for payment in respect of fabricated work. The Court of Appeal held that Thurrock Council had started its prosecution unlawfully because the court deemed the decision to act for the LAA was taken for commercial reasons and created a conflict of interest and the case was taken over by the Director of Public Prosecutions (DPP). But what were its arguments for making this decision? Whatever the authority considers Effectively, a statutory gloss has been placed on section 222, so that the test is now whether the authority reasonably considers a prosecution expedient Section 222(1)(a) empowers an authority to prosecute whenever it considers that the expediency criterion is met. This is a subjective test the question is not whether the expediency criterion is in fact met, but whether the authority holds the opinion that it has been met. Nevertheless, R v AB is now authority that the courts have jurisdiction to review an authoritys decision, albeit sparingly (at [43]). The court gave previous decisions on this point a questionable interpretation. In Mole Valley DC v Smith [1994] 24 HLR 442, two authorities had brought civil proceedings under section 222 to obtain injunctions restraining breaches of planning control. The judgment chiefly considers whether the court below was right to grant the injunctions. The Court of Appeal only commented briefly on the authorities decision to institute proceedings, remarking (p450): Similarly, it is not for the courts in these proceedings to review the decision of the respondent councils under section 222 to bring these proceedings on the basis of the councils view that to do so was expedient for the promotion or protection of the interests of the inhabitants of their area where the balance of the public interest lies is for the respondent councils to determine and not for this court. Quite astonishingly, the court in R v AB concluded that this passage did not suggest that there was no role for the courts to review or interrogate a councils decision under section 222 (at [46]). This analysis is entirely at odds with the actual words cited above: It is not for the courts... to review and it is for the respondent councils to determine and not for this court. The Court in R v AB justified its analysis by saying that the court in Mole Valley recognised the possibility of a judicial review of the authoritys decision to issue proceedings (at [46]). However, the reference in Mole Valley (p449) to the potential for judicial review was in relation to the Secretary of States implementation of town and country planning policies, not the authorities decision to institute proceedings. In Barking & Dagenham v Jones [1999] All ER (D) 923, Brooke L J cited Mole Valley and said: It is for the local authority to make that judgment [whether it is expedient to bring proceedings] not the court and the judge misdirected himself as to his proper role when he questioned whether the inhabitants of Barking were being truly served by the issue of these proceedings. The court in R v AB surmounted this second hurdle of authority by surmising that Brooke L J was saying no more than that the (incorrect) approach of the judge below was to seek to substitute his own opinion for that of the local authority, rather than to review it (at [46]). Again, it is a strained inference that Brooke L J would not have criticised the judge below for reviewing rather than questioning the authoritys decision to prosecute. It is true that Brooke L J proceeded to explain why he considered the authoritys decision was correct, but this appears to have been in the alternative to his primary conclusion that the decision was one for the authority, not the courts. Brighton and Hove CC v Woolworths plc [2002] EWHC 2565 Admin lent the most support to the existence of a reviewing jurisdiction, but there the court found (at [33]) that the prosecution of breaches of a suspension notice, which occurred outside the authoritys area, could not ex hypothesi be expedient to protect inhabitants interests, that is, it was not possible for the expediency criterion to be met, or for the authority to consider that it was met. In that case, it does not appear that the authority was in fact of the opinion that a prosecution was expedient: the judgment does not refer to any suggestion by the authority that its inhabitants interests were somehow engaged, and the authoritys primary position had been that it had been delegated the power to prosecute by other authorities. As such, the balancing exercise reserved by section 222 to local authorities is now subject to a reviewing jurisdiction, arguably created in R v AB. It no longer suffices that the authority genuinely considers that the expediency criterion is met. Effectively, a statutory gloss has been placed on section 222, so that the test is now whether the authority reasonably considers a prosecution expedient. The scope of inhabitants interests Once the court established its jurisdiction to review, the next question was whether the council had unreasonably formed the view that the prosecution was expedient to protect or promote its inhabitants interests. Interests as UK citizens Firstly, Thurrock Council claimed that its prosecution would protect its inhabitants interests in preventing the legal aid system from being defrauded. The LAA provided financial assistance to UK citizens, including the inhabitants of Thurrock. Mysteriously, and without reference to authority, the court concluded that the interests of the inhabitants of Thurrock must be engaged over and above their interests merely as ordinary citizens of the nation (at [54]). This does not follow from the wording of section 222, which merely refers to the interests of the inhabitants of their area, without specifying whether those interests should be national or regional. It is one thing to require an authority to refrain from prosecuting offences that are only of interest to inhabitants of a different authority area (as in Brighton v Woolworths, above). It is quite another to require an authority to determine whether its inhabitants interests are regional or national often there may not be a clear distinction and refrain from instituting prosecutions to protect the latter. It appears that the courts real concern was that this was a significant, high value case which ought to be prosecuted by the CPS for presentational reasons (see [88], [91] and [98]). Financial interests In the alternative, the council claimed that its prosecution would protect its inhabitants financial interests. The council had entered an arrangement with the LAA that would provide extra manpower for the investigation of other fraud within its area, thus releasing council resources for other services. The income generated from the arrangement could fund other cases benefiting Thurrock inhabitants. Such financial interests were interests of inhabitants qua local inhabitants, rather than qua UK citizens. The courts objection here was not that these interests were invalid, but that it was distasteful that an authority should seek to prosecute frauds as a purely commercial enterprise, selling its prosecutorial services (at [56] and [94]). However, this does not address the literal wording of section 222. It cannot be said that a prosecution that enhances an authoritys funding and resources fails to promote its inhabitants interests, albeit this may not have been what the draftsman of section 222 had foremost in mind. The court clearly found it unpalatable for a local authority to decide to act as prosecutor for commercial reasons (although it left open whether an authority could establish a company to provide legal services under section 4 of the Localism Act 2011). However, it was the LAA that had initially approached the council to seek its investigative expertise, and the LAA had subsequently approved the councils decision to act as prosecutor. Moreover, it was intimated that the police had refused to take the case on because of a lack of resources in computer forensics (although the court described the evidence on this point as unclear). The court channelled its distaste for the commercial arrangements into its interpretation of the interests of the inhabitants in section 222. The court also disapproved of the incentivisation agreement between the LAA and the council, which provided that 37.5 per cent of any confiscation proceeds would go to the councils prosecuting and fraud departments. The courts view was that this engendered a conflict of interest, as the council would have a real financial interest in undertaking the prosecution (at [93] and [96]). It is unclear why the same reasoning would not apply to any local authority prosecution expected to result in confiscation proceedings; in the normal course of such prosecutions, the authority is entitled to a proportion of the confiscation receipts. Summary Ultimately, it now appears that a public body should only be represented by a local authority in a prosecution where the matter relates to activities or inhabitants within the authoritys area, or if a number of authorities have combined to appoint a lead authority for a particular kind of activity (see R v AB at [97]). This is a much more limited scope for local authority prosecutions than the literal wording of section 222 suggests. The courts interpretation of section 222 was driven by its perception of those cases it deemed appropriate for a local authority toprosecute. Credits Ruth Balais a barrister at Gough Square Chambers. Images: istock.com / Orla istock.com / Floortje To share this page, in the toolbar click on You might also like Championing the digital consumer June2017